Bernard Jenkin is Chairman of the Public Administration and Constitutional Affairs Select Committee and MP for Harwich and North Essex. He is a former Shadow Defence Secretary.
It is true that the Government do not appear to have done anything illegal, in deciding to mail 27 million households with a 16 page booklet, telling voters why they should vote Remain in the EU referendum – but just because it is not illegal does not make it right.
Just imagine that a government issued such a booklet explaining its policy ten weeks before a general election, telling voters why they should vote to re-elect the party in office. There would be apoplexy from the other political parties. Would we be happy with the ministers who simply said: “The Government is entitled to make its case”, with senior civil servants simply justifying their involvement by saying that they are obliged “to serve the government of the day”? The Civil Service Code obliges the civil servants to be impartial. Few amongst the general public would regard civil servants drafting and producing a campaign leaflet to argue one side in a referendum as as the highest example of civil service impartiality.
Much of the Government’s justification for this decision rests on precedent and, in particular, precedents set during the 1975 Common Market referendum’. But that first-ever British referendum was conducted before there were any rules about how a fair referendum should be conducted. The Cabinet minutes of the time record how the machinery of Government and public money were ruthlessly employed, right up to polling day, to mount ministers’ campaign to win the referendum. There was no statutory framework for referendums and no Electoral Commission. There were no officially designated “Yes” and “No” campaigns, no 16-week “regulated period”, no final 28-day “purdah” period. The Wilson government just had to make up the rules as the went along. It was an amazing experiment – and a massive political heist, to bamboozle the public into voting for something that they knew in their hearts they did not really want.
It was also a referendum which followed the ‘Sudetenland principle’. Remember: Hitler’s referendum about that annexation was only held to ratify what had already been made the status quo. Had the referendum been held before his illegal act, the outcome could well have been different. Such despotic and unprincipled deployment of a referendum got referendums as a whole a very bad name amongst parliamentarians. It was Clement Attlee who inveighed that “referendums are the devices of demagogues and dictators”, and you can understand why he said this. The regulation of referendums needs to guard against their abuse.
We promised a referendum on the Euro in our 1997 general election manifesto (a concession made only after John Major was forced by Conservative backbenchers to concede the same). And it was Jack Straw as Home Secretary who understood that, if the referendum were to become a part of the British constitutional landscape, there needed to be rules and conventions which apply to their conduct, in the same way as others do to national and local elections.
So these were included in the Political Parties Elections and Referendums Act 2000 (PPERA). The restraint of government around elections has always depended upon convention rather than law, and has largely been policed by the political parties themselves, who have always understood the mutual interest in there being fair rules for parties in elections, whether in or out of office. No such conventions existed for referendums, so these have had to be written into law. But our law still falls far short of what would constrain the activity of governments in other countries. And even now that referendums are governed by law, it is still hard for civil servants to refuse to allow ministers to undertake referendum-related activities which the law does not prohibit.
When the Public Administration and Constitutional Affairs Committee, which I chair, was taking evidence on how the EU referendum would be conducted, we asked the Cabinet Secretary what constraints he would feel obliged to impose on ministers. He said: “my job is to make sure that Ministers get proper advice on what is permitted and what is not.” On how the machinery and resources of government would be used in the run up to the referendum, he made it clear that these “will be used for whatever the Government is permitted to do.” That was why it was essential for the Parliament to defeat the Government’s attempt to allow them to abolish Section 125 of PPERA, or the Government would have been allowed to produce this booklet during the final 28 days of the referendum campaign, which is what Harold Wilson did in 1975 – which hardly makes it a good precedent to cite.
The evidence that we heard showed that PPERA still only provides a feeble regime of control for referendums, compared to other countries such as Denmark or Ireland. When PPERA was being enacted, there were many voices in Parliament who argued that the 28 day purdah period should be treated in the same way as the ten-week regulated period during which the designated campaigns can only spend up to their limits. To be fair to ministers, they are launching their tax-funded propaganda before this latter period begins, but that merely demonstrates how even they must be feeling squeamish about this overt political campaigning from Whitehall.
Ministers said much in the Commons, when they were trying to win divisions, to give a different impression of their intentions, and in committee, David Lidington, the Europe Minister, actually told us, ” We are not in the business of talking about the Government going for mass e-mail campaigns, leaflet drops, glossy brochures, advertising or anything like that.” While this was during a discussion about the 28 day period, this week’s action is not in the spirit of what he said.
Ministers also gave assurances on the floor of the Commons that any information they produced would be impartial. That is clearly not the case in this booklet. Yes, it contains some facts, but only those convenient and partial to the Remain case. Where, for example, is reference to table 9.9 in the 2015 Pink Book which confirms that the UK contributes £19.1 billion per year to the EU budget (yes, equivalent to £350 per week), or that the UK rebate comes up for review once again after 2020? Where is reference to the recent agreement made with Turkey, promising visa-free access to all Turkish citizens to the EU and eventual EU membership, giving them right of free movement across the whole of the EU, including the UK? How can the leaflet insist that we control our borders, when we have no right to stop any non-UK EU citizen from entering our country? This is propaganda, not fact.
The Electoral Commission, reacting to the Government’s booklet, has said: “After the referendum on Scottish independence, the Electoral Commission recommended that governments should conduct no taxpayer-funded advertising activity during the regulated period.” This was a warning shot that clearly indicates their discomfort.
The Scottish precedent was not so bad, since both the UK government and the Scottish Government sent information to Scottish households, so at least there was some balance between the two. What so offends the sense of British fair play in this case is that there is no other government or public body in this referendum which can counterbalance Whitehall’s propaganda. And, right up until the 28 period cuts in, Ministers will be using their press offices, spin doctors and secretaries to arrange their campaigning, and their transport to meetings and rallies will be paid for by the taxpayer, while the official Leave campaign can only spend £7 million on its campaigning, out of money almost entirely from voluntary contributions – substantially less money than the Government has spent on this one booklet.